Copyright Week: How Copyright Is Being Use To Destroy Property Rights

from the not-enhance-them dept

The latest in our posts for Copyright Week explores the concept of "you bought it, you own it," and how that's going away thanks to copyright. What's funny (or depressing) is that copyright's strongest defenders like to claim that protecting stronger copyright is about increasing "property rights." We've long since pointed out that copyright and property are very different. Property, as a concept, was developed to better manage the efficient allocation of scarce resources. But when something isn't scarce, it simply makes no sense to have a property right around it.

But we're not here to discuss whether or not copyright is or isn't property right now. Instead, let's look at how copyright has fundamentally taken away property rights from many. And let's start out with a look back into history. This isn't something that is necessarily new. You can go all the way back to 1773 and the famous case in Scotland of Hinton v. Donaldson, in which Lord Kames was already aware of how excessive copyright can interfere with real property rights:

What is then the nature of the pursuer's right? He does not pretend to say, that it is a right to any corpus, to any subject that can be possessed, or that can be stolen from him. Ergo, it is not property. Taking it in all views, no more can be made of it than to be a privilege or monopoly, which entitles the claimant to the commerce of a certain book, and excludes all others from making money by it. The important question then is, from what source is this monopoly derived, a monopoly that endures for ever, and is effectual against all the world? The act of Queen Anne bestows this monopoly upon authors for a limited time upon certain conditions. But our legislature, far from acknowledging a perpetual monopoly at common law, declares that it shall last no longer than a limited time.

But to follow out the common law. The composer of a valuable book has great merit with respect to the public: his proper reward is approbation and praise, and he seldom fails of that reward. But what is it that entitles him to a pecuniary reward? If he be entitled, the composer of a picture, of a machine, and the inventor of every useful art, is equally entitled. Such a monopoly, so far from being founded on common law, is contradictory to the first principles of society. Why was man made a social being, but to benefit by society, and to partake of all the improvements of society in its progress toward perfection? At the same time, he was made an imitative being, in order to follow what he sees done by others. But to bestow on inventors the monopoly of their productions, would in effect counteract the designs of Providence, in making man a social and imitative being: it would be a miserable cramp upon improvements, and prevent the general use of them. Consider the plough, the loom, the spinning wheel. Would it not sound oddly, that it would be rank injustice for any man to employ these useful machines, without consent of the original inventors and those deriving right from them? At that rate, it would be in the power of the inventors to deprive mankind both of food and raiment. The gelding of cattle for food, was not known at the siege of Troy. Was the inventor entitled to a monopoly so as to bar others from gelding their cattle? What shall be said of the art of printing? If the monopoly of this useful art was to be perpetual, it would be a sad case for learned men, and for the interest of learning in general: it would enhance the price of books far beyond the reach of ordinary readers. Such a monopoly would raise a fund sufficient to purchase a great kingdom. The works alone of Shakespeare, or of Milton, would be a vast estate. Te art of making salt water fresh is a very late invention. Was it ever dreamed to be a transgression against property, to use that art without consent of the inventor?

I observe, in the next place, that this claim, far from being founded on property, is inconsistent with it. The privilege an author has by statute, is known to all the world. But I purchase a book not entered in Stationer's hall; does it not become my property? I see a curious machine, the fire engine, for example. I carry it away in my memory, and construct another by it. Is not that machine, the work of my own hand, my property? I buy a curious picture, is there any thing to bar me from giving copies without end? It is a rule in all laws, that the commerce of moveables ought to be free; and yet, according to the pursuer's doctrine, the property of moveables may be subjected to endless limitations and restrictions that hitherto have not been thought of, and would render the commerce of moveables extremely hazardous. At any rate, the author of avery wise or witty saying, uttered even in conversation, has a monopoly of it; and no man is at liberty to repeat it.

Lord Kames immediately understands the dangerous nature of how copyright can actually interfere with the property rights of others, and it's a situation that has gotten significantly worse over time, especially now that all sorts of things -- digital and physical -- include code or other content that can be covered by copyright law. And, as such, things that we "buy" every day are no longer actually being bought, but rather licensed -- and with that license comes all of the restrictions that Lord Kames mocked as crazy centuries ago.

Last year, Alex Cummings wrote an excellent article discussing the end of property rights, because copyright was slowly being used to take those rights away, and how it's only getting worse:

Today, we see a renewed attack on the rights of consumers by big business. Overly zealous regulation means that consumers are essentially barred from "unlocking" a cell phone, or severing the device from its original wireless carrier. Critics warn that such restrictions not only limit the rights of consumers but threaten to stifle old-fashioned tinkering and innovation. It is as if Ford told customers that they can't pop the hood of their car and mess around its inner workings (which is how the world got NASCAR, incidentally).

How far should a phone company's power extend into our personal lives when we buy one of their products? When you buy a phone or an MP3, is it really yours—or has a company just loaned it to you with a laundry list of stipulations and provisos? The age of cloud computing is upon us, and soon most of our books, movies, and musics might have no material form. We may discover that buying something no longer means owning it in any meaningful sense—and our stuff isn't really ours anymore.

It used to be that if you bought something, you owned it. That's a property right. But that's being constantly eroded thanks to the over-aggressive use of copyright. Even worse, many of the worst abusers of this want the best of both worlds. They want to pretend something is a purchase when it benefits them, while arguing that same "purchase" is just a license at other times. It's Schrodinger's copyright. But the end result is the same: copyright is being used to take away basic property rights by hiding it in the fine print.

And that has massive implications for ownership, economics and innovation. True property rights are key to a functioning economy. But when everything you buy is not actually yours, and you're unable to do what you want with it, then you limit the ability to build up markets and to further innovate. So much innovation comes from someone taking something they've bought, tinkering with it, changing it, improving it, making it useful for other purposes. But in a world where copyright and control rule over all, you limit that kind of innovation, such that only the copyright holder (often not the initial creator) can control that innovation and process. And that rarely ends well.

So, yes, let's talk about property rights and how important they are. But if we're talking about copyright in that context, it needs to be by noting just how far copyright has gone to take away and destroy our basic property rights. And that's something that needs to change.

Truth in labelling

If a work is DRM'ed all to heck with Digital Restrictions Mangling, then you should never be able to suggest that it is being offered for sale. Only for "use" by the owner.

Furthermore, if it is an online stream, it should be clearly labelled as such and it should be clear that it can go away at any time without prior notice.

If it is an online download, it should be clearly labelled as such and it should be clear that it may stop working at any time without prior notice. (See recent Disney scrooging of people's already "purchased" movies.)

"So, yes, let's talk about property rights and how important they are. But if we're talking about copyright in that context, it needs to be by noting just how far copyright has gone to take away and destroy our basic property rights. And that's something that needs to change."

Are you thinking that because you bought a movie on DVD that you owe the Rights to the content on the DVD?, or, you own the plastic and packaging?

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You have the right to resell the content with that DVD, which is a right you don't have if you purchase a download of the same content, simply because the download is marginally easier to copy than the DVD.

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With a DVD or a book, you have the right to play it or read it forever.

With a DRM'ed digital download, it can quit working without any notice.

Microsoft Plays For Sure was supposed to let you put music onto any device, and move it from device to device. Eventually Microsoft got tired of it and shut down the servers. Now your music was imprisoned on the device it was on. When that device wears out, too bad, all your purchased content is gone.

Microsoft Zune would fix that. Purchase Zune content. You can move it from device to device.Eventually Microsoft got tired of it and shut down the servers. Now your music was imprisoned on the device it was on. When that device wears out, too bad, all your purchased content is gone.

Buy a Kindle eBook from Amazon. Suddenly it disappears from your Kindle. Without any notice to you Amazon can silently yank that 'purchased' eBook away from you. So what exactly did you pay for?

Buy a digital Disney Christmas movie from Amazon. Disney decides they want to yank it back from you. They can and do. Amazon is unable to do anything about this. Disney says a big F.U. to you. So what exactly did you pay for?

I would go even further.

There is often a claim that goes around in counter to the reasonable observation that creations made from building blocks that belong to everyone (say, the letters of the alphabet) cannot be regarded as property, and that claim is this: "we may not own the building blocks because they are common, but we own the symphonies because they are unique". To which I respond: if the symphonies are unique, surely my symphony of Mickey Mouse told in a way never told before is also unique and therefore also my right? But apparently not.

There's no way they can escape this paradox. There is a REASON why we stress the importance of avoiding building upon property "blocks" that were never anybody's to begin with - because you get paradoxical overlaps.

If, however, such symphonies were regarded as the alternative kind of property to products - services, that is - no overlaps exist. Which is why assurance contracts such as crowdfunded projects are in the right and copyright is in the wrong.

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You own the rights to the disk, which includes making use of the contents of that disk; the same way that buying a book buys the rights to read the words on the pages or resell it to another person. Are you trying to confuse the issue by arguing otherwise?

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But what about my right to resell my DVD or book?

Increasingly the copyright insanity wants to get paid again if I resell my book. Then others pick up on this and assume it should happen for other real property as well. If I resell my house, shouldn't the architect get paid again? They seem to think so -- and it's all due to copyright.

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"But if blue gets his way, by 2214 the 1st amendment will guarantee his right to force other people to listen to and agree with his 'speech'."

Nah, if blue and his ilk get his way, by then, we will have chips implanted to monitor our thoughts like in that movie "Fortress", and everytime we think about a copyrighted song of movie, we will get a warning saying "this is an unauthorizad thought process" followed by a painful stimuli. :P

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Are you thinking that because you bought a movie on DVD that you owe the Rights to the content on the DVD?, or, you own the plastic and packaging?

Without copyright, there wouldn't be any separate "rights" to the content on the DVD. You would have property rights over every part of that DVD - the plastic, the packaging, the content, everything.

With copyright, the copyright holder has rights over the property that you own. You are not allowed to make a copy of your own property, with your own labor and materials, and distribute it to others (for free or otherwise). You are not allowed to display the contents of that DVD in a public place. You are not allowed to use the content on that DVD to create your own video. And so on. These are all property rights you would have without copyright, and do have on property that's not under copyright, like clothing or recipes.

And you do own the "rights" to the content on that DVD in some ways. For example, you can resell, give away, or even destroy your copy of the DVD, contents and all. That's because of "first sale rights," which are definitely property rights. They are also rights that many copyright holders are trying desperately to get rid of.

That only scratches the surface, of course. The fact that we have property rights in our phones means that we should be able to unlock them. The fact that we have property rights in our XBox consoles means that we should be able to mod them. The fact that we have property rights in our computers means that we should be able to alter the software that runs on them. And so forth.

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Yes, resale rights are now being attacked on multiple fronts. We already can't resale digital goods, and can't resale physical goods bound with DRM or other licenses, or merely purchased in another country.

How far do our rights have to be eroded before the generally apathetic populous takes notice? By the time it begins to impact their daily lives, it's too late. Corrupt laws have already been bound in multiple layers of international "agreements". We manged to dodge a few of the latest attacks on our freedoms with SOPA and ACTA because the sleeping giant was stirred, but what about next time?

This is nothing but a natural outgrowth of the digital age. In former industrial times goods were valuable and ownership of machinery was prized and protected. In this digital age information [think ones and zeros]is of far more value than mere tangible goods. It is only natural that the owners of those ones and zeros would do their utmost to tie them up, increase their value and go to outlandish lengths to protect them. Watch as inmates convicted of dealing in pot are increasingly let out of jails and the cells are filled with file [ones and zeros] downloaders. Copyright violators will inevitably become criminalized. Scary?

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Or merely thinking about a string of words that might possibly be part of a song's lyrics will instantly be declared an unauthorized "public performance" and be automatically fined the maximum statutory damages of $100,000 by a rubberstamping robo-judge, which will be added to your debt to the plutocracy that you'll have to work for the rest of your life to payoff.

Oh, Mike, you STILL haven't got this clear:

"When you buy a phone or an MP3, is it really yours—or has a company just loaned it to you with a laundry list of stipulations and provisos?" -- THE LATTER, KIDS. Digital media is even LESS owned: you have a license to listen to it practically all you want, but you do NOT own it! Sheesh.

Anyway to attack this aspect of copyright do as needed everywhere: go afer corporatized power directly as only permitted by the public and subject to our rules; to take away corporate "rights" with regulation, not to attack their acts. You can't let corporatism run wild and then be surprised when they take more! -- By the way, a key point to keep in mind is that BIG IS BAD, so start-ups and small corporations should NOT be subject to close regulation, but large ones should be; but as usual, the moneyed interests have that exactly reversed right now so that large corps are essentially exempt -- and like Google, untaxed -- while the jackbooted thugs ride medium to small corporations.Challenge: state ONE gov't or corporation that has ever voluntarily limited its size or control. -- YOU CAN'T. -- But why don't you apply that to present trends and oppose coporate power TOO?

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That is a tricky question since it is different between jurisdictions. In EU you have the right to copy a work twice as long as it stays inside the household. That could be argued as an, albeit limited, ownership of the content. Besides: The plastic and packaging has no time-restrictions attached, essentially making the purchase time-independent and therefore a form of eternal license which for all intents and purposes is ownership (I assume the copyright holder cannot come and squash the disc legally!).

The internet makes the above mensioned even more absurd to uphold than previously! Since traceability and therefore reproduceability is very high, copyright restriction as above would be completely impossible to enforce without a perfect knowledge about IPs and no way to obscure it or the person using it (requires almost 100 % spatial and temporal surveillance to assertain to a meaningful degree, making 1984 a libertarian utopia in comparison!).

Re: Re: @ LYING "DANNYB":

@ "But if blue gets his way, by 2214 the 1st amendment will guarantee his right to force other people to listen to and agree with his 'speech'."Wish you exercise your free speech on topic rather than LIE about me, fool.

Mike supports copyright too, ya know.

I support the right of creators to profit their works, and only creators to profit from it, not endless grifters nor thieves to just take it, If you don't, then YOU are the major problem. You don't have a coherent, non-theft based notion of how content can be created.Where the fanboys LIE about me in advance!

Re: Re: Re: @ LYING "DANNYB":

"I support the right of creators to profit their works, and only creators to profit from it, not endless grifters nor thieves to just take it, If you don't, then YOU are the major problem. You don't have a coherent, non-theft based notion of how content can be created."

Then why do you fellate Big Media so much, when the bulk of them are middlemen, management and non-producers literally grifting (and in many cases, outright stealing) from the actual creators?

The vast majority of the profits from your "Only $100 Million Movies Count" screed do NOT go to the main creative principals, but to producers, media heads, and other mid-level go-betweens.

We have grown

I think the problem that you (and the quote writer) have is that you are unable to grasp the concept that mankind has moved past the "nailing two things together" stage and into a much more complex stage where the nature of products is very different.

As an example, I can hand you a collection of resistors, diodes, chips, a blu-ray drive, and a power supply, but you won't have an Xbox. Even if you assemble all of the parts correctly (a skill most of us don't have) you still wouldn't have an Xbox, you would have a collection of parts that won't function as a whole without... firmware and software.

Now, you can roll your own if you want, but really, most of us don't have the time or the desire to spend weeks or months developing firmware and software for a gaming system. We are no longer nailing together two things to make something new, we are building complex machines that are more than the sum of their parts, because of the IP installed on them.

See, the problem here is that even if you could build your own, most people would short cut the hardest stage and rip off the firmware and software because they don't see it as significant. Yet, it's the key to making any of this stuff be more than a pile of parts. Take the firmware off your computer, and see exactly how much you get done.

The example of the book is key here, because while yes, in purchasing the book you own it (the book) you don't actually gain ownership or control of the words in it. You didn't buy ownership of the work, you bought a delivery method for a limited rights copy of the work. Yes, you do own the book, but not the words.

You can only go wrong here if you intentionally misunderstand the relationship. When you buy a DVD, you are buying the plastic, not the ownership of the movie on it. Buying a DVD of Avatar doesn't suddenly make you the owner of the movie, just the owner of the DVD with a copy on it.

When I visit Techdirt, I don't suddenly own the website. I have in my possession, if I so desire, a complete copy of the site (it would take a while, but I could get it). But even with that complete copy in my hands, I don't own the site, I don't own the content. I do own the computer that is showing it to me (but not the firmware running it, I have rights to the copy on my machine).

Like it or not, modern products depend on firmware and software to run them, and that is not offered up as an ownership right, only as a license to use. If you wanted to pay to have someone create new firmware for each item sold, your cell phone would cost you tens if not hundreds of thousands each, as each one would have it's own custom firmware and software. That would be painful, don't you think?

It gets even better...

If your purchase of a DVD is nothing more than a license, then you should be able to plain download it from The Pirate Bay. You bought the right to use that work after all. That right should be in perpetuity unless there is some contractual language to the contrary. So that right should outlast even the DVD format itself.

Although we all know that Big Content simply wants to have it both ways. They want always have all the rights and for no one else to ever have any.

Re: Re: Re: Re: @ LYING "DANNYB":

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No, seriously.

When they say "OWN IT", why should I translate that to mean 'You have a licence to the media, but we can take it back any time we feel like it and you cannot re-sell what you thought that you had bought, OH, and by the way, we have bribed government officials and have had your right to make a back up copy made illegal by including DRM"

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No, seriously.

When they say "OWN IT", why should I translate that to mean 'You have a licence to the media, but we can take it back any time we feel like it and you cannot re-sell what you thought that you had bought, OH, and by the way, we have bribed government officials and have had your right to make a back up copy made illegal by including DRM"

Re: Re: Re: @ LYING "DANNYB":

What lie?

You support the exploitation of creators. You support corporate greed. You support the biggest grifters out there - the studios. You support the exploitation of women with your support of Porn industry.

I want my things to be mine

I read a lot. In Poland, where I live, there are those messed up taxes, thanks to which digital ebooks cost almost the same as physical books. And there comes the question: why should I pay for something, that is basicly a license, and can be yanked from me at any time, for the price of a "real thing"? Even a library is a beter choice: I basicly reach the same reasult ("borrowing" a book that I don't own), without paying so much money for it.

But ebooks are convenient (I do a lot of "mobile" reading, for example in public transportation). Transition from paper to ebooks means progress - we live at the time where digitalization of culture is happening as we speak, and it's not going to stop just because someone thinks it's inconvenient. Culture and even the very idea of culture is changing at a rapid pace. Are we going to end up in a place, where nobody owns nothing anymore? Are we going to pay a license fee every time we go out wearing particular clothes, singing a birthday song or looking at some picture on the random wall? Will we be forced to read pages and pages of license information every time we start an internet browser?

Or are we just going to pay a "pirate tax" for every piece of equipement that is capable of copying - phones (comming soon...), cameras (in Poland we already do as far as I know), printers, tvs, computers, soon probably fridges...

On top of it, if property rights dissapear, there will be one more not so obvious problem: a lot of people feel safer on a psychological level when they "own" things. It's disconcerting, when your things can be taken from you at any moment. It feels sort of like prison...

It's not just copyright. Patents are also being used to drastically limit consumer choices.

For instance, physical interfaces are commonly patented to prevent competitors from selling any kind of "plug in" or "swap out" components.

Just imagine if Henry Ford had gone that route - and had patented the Model T's dimensional specs. Car owners could not have installed bigger wheels or even bought a competing brand of tire without breaking the law.

Re: Re: Re: Re: @ LYING "DANNYB":

It's an established fact - by Cathy herself - that only "copyright holders" should have the rights over the copyrighted works, creators be damned. And I'm STILL waiting for a clear definition of "the everyday good of copyright."

So far, it seems to mean "needless intrusion by the state to enforce licensing over property rights."

That's only "good" if you're the kind of corporate creep Cathy pretends to deplore.

Re: Re: Re: It gets even better...

Wouldn't it be nice if everyone spent just a few seconds on Wikipedia to educate themselves about the meaning of "copyright" before commenting on it. And while they're there, take a peek at "Intellectual Property" as well as "Private Property" and "Personal Property". (Here's a fun fact: When you buy a house, you're not buying the property it's built on. You're only buying the rights to the property. I'm also old enough to remember the days when you couldn't own a telephone.)

Re: Re: Re: It gets even better...

Changing format and copying is not the same thing.

And if the original media is destroyed (scratched) then I still have a license, I just don't have the original media (the thing I "own") and if the work is available to download, why should I not be allowed to do that, since I have a license (the intangible thing that came with the media)?

Re: Re: Re: Re: It gets even better...

Better yet - if you own a license, why shouldn't you be entitled to replacements of the damaged media?

It seems to me the copyright holders want to be able to declare consumers as only holding "licenses" as opposed to owning the media they buy, but don't want the responsibilites inherent in honouring those licenses.

If you only purchase a license, the holder of copyright should (must!) be required to replace damaged or destroyed media.

If access to a purchased online film is removed (as in the Disney/Amazon incident), the money paid for the license must be refunded at the copyright holder's expense.

Those two changes would make the move towards "licensing" as opposed to "sale" more fair for the consumer. Who's betting the people who want such a move won't want those changes?

Re: Re: Re: It gets even better...

and you have not purchased any license to COPY, you have not purchased the copyright to the movie you buy, you have purchased A COPY, simply not the right to copy.

That's not exactly true either. When you purchase a copy, you also purchase the content that is "fixed" to that copy. You have not purchased the content that is not fixed to that copy.

However, you may have also purchased "the right to copy" in certain situations. For instance, time shifting is fair use under the Sony decision, so you have also purchased the "right to copy" if that copy constitutes time shifting.

But in reality, this outlook is entirely backwards. When you purchase a copy, by default you have purchased every right associated with that copy. The rights granted by copyright law are a limitation on those property rights.

And the rights granted by copyright law are limited in a number of ways. For example, copyright holders do not, and did never, hold any rights to control the resale of the content that is affixed to a specific copy. That is black-letter law:

Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

When those limitations exist, then it is the copyright holder's right to infringe on others' property rights that is limited.

And that is "ownership" of a copy. What the people above are talking about is a "license." Ownership and licensing are not the same thing. Their point is that nowadays there is no "ownership" at all, and they have purchased a mere license. So, they should get the same rights that other licensees do.

if you want to own a movie, PAY FOR ITS CREATION, if you want to own a copy of a movie on a DVD .. PAY FOR ITS COPY,

when you buy a DVD with a copy of a movie that someone else payed for, you do not buy what THEY paid for, (the creation of the movie), and you DO NOT buy the rights to copy that movie (given to you because you paid for its creation).

YOU DO NOT OWN THE MOVIE, you own a copy of a movie that someone else pay to have made, BUT YOU DO OWN THAT MOVIE THE COPY.

Not the copyright, you own a copy, but NOT THE RIGHT TO COPY..

Again, how hard is that ??

You are either stupid and cannot understand such a simple thing, or you are willing to act stupid so you can pirate shit.

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No one owns the movie beyond copies.....that's the only form of "property" in play. Beyond that, it's just the expression of an idea that someone holds (not "owns") the copyright on. That isn't property.